Wilburn v. Wilburn

132 S.E.2d 332 (1963)

260 N.C. 208

Arthur Julius WILBURN v. Yetta Eliza Jackson Ragbir WILBURN.

No. 103.

Supreme Court of North Carolina.

September 18, 1963.

*334 George Pennell and Dailey & Harrell by Ruben J. Dailey, Asheville, for plaintiff appellee.

George L. Bumpass, Nathaniel L. Belcher, and Floyd H. Brown, Durham, for defendant appellant.

PER CURIAM.

Defendant assigns as error the court's refusal to grant her request for a continuance made on 5 March. Continuances are not favored. The granting or denial of a motion to continue is a matter in the sound discretion of the trial judge and will not be disturbed unless an abuse of discretion is made to appear. Cleeland v. Cleeland, 249 N.C. 16, 105 S.E.2d 114; Watters v. Parrish, 252 N.C. 787, 115 S.E.2d 1.

The facts appearing in the record, summarized in the foregoing statement, do not show an abuse of discretion. To the contrary, they indicate the court's desire to afford defendant full opportunity to present her defenses. The assignment of error cannot be sustained.

Defendant assigns as error the court's refusal to dismiss plaintiff's action for that she had previously instituted an action for absolute divorce in the courts of Maryland. To sustain a plea in abatement based on the pendency of a prior action, it must appear that the two actions are pending in the same jurisdiction. The plea cannot be sustained when the other action is pending in the courts of another state. Sloan v. McDowell, 75 N.C. 29; Hubbs v. Nichols, 201 Tenn. 304, 298 S.W.2d 801. Were the rule otherwise, defendant's plea could not be sustained because of her failure to show the pendency of the action in Maryland. Her proof consisted of an uncertified copy of the complaint filed by her in the Maryland courts. No process had ever been served on defendant, and, so far as appears, no process had ever issued. Proof only of the filing of a complaint is not sufficient to show the pendency of any action.

Defendant assigned as error the refusal to allow her motion to nonsuit. The exception is based on her contention that plaintiff's work prevented him from becoming a resident of this state. The mere fact that plaintiff's work with the United States Government required extensive travel, preventing him from remaining constantly in the state, did not deprive him of the right to establish his residence in North Carolina. In re Orr, 254 N.C. 723, 119 S.E.2d 880; Martin v. Martin, 253 N.C. 704, 118 S.E.2d 29.

No error.